U.S. judge allows Bin Laden driver testimony at Abu Ghaith trial

NEW YORK | By Jonathan Stempel

NEW YORK Jan 15 A former driver for Osama bin
Laden and a witness linked to plots to bomb U.S. airliners may
testify by video at the U.S. trial of Suleiman Abu Ghaith, a
son-in-law of bin Laden and former al Qaeda spokesman charged
with conspiring to kill Americans and providing material support
to terrorists.

U.S. District Judge Lewis Kaplan in Manhattan on Wednesday
granted a defense motion to allow testimony from Salim Hamdan,
perhaps best known as the plaintiff in a 2006 U.S. Supreme Court
decision that found unconstitutional the military commissions
set up for detainees at Guantanamo Bay in Cuba. Hamdan's
subsequent conviction was overturned in October 2012.

According to Abu Ghaith's lawyers, Hamdan would testify that
he never saw the defendant participate in any plotting, and that
Abu Ghaith's inclusion on a "brevity card" that contained names
of members of al Qaeda's inner circle would not necessarily
suggest allegiance to al Qaeda.

Prosecutors had argued that testimony would be unreliable,
and Kaplan agreed that some of it would likely be inadmissible.

But the judge said testimony about the so-called brevity
cards, which apparently also included names of car mechanics and
"innocent bystanders," could rebut the government's suggestion
that Abu Ghaith's appearance on one such card demonstrated his
guilt.

Kaplan also said testimony that al Qaeda camps were used to
train people to fight in the Middle East could weigh against
prosecutors' claim that any speeches that Abu Ghaith made there
were meant to further a conspiracy to kill Americans.

In allowing video testimony, Kaplan said Hamdan, now a Yemen
resident, opposes and may be "legally barred" from traveling to
the United States.

WITNESS TIES TO SHOE BOMBER

Kaplan also granted a request by prosecutors to allow video
testimony from an unnamed witness who based on his description
in court papers is Saajid Badat, who plotted with "shoe bomber"
Richard Reid to blow up airplanes.

Kaplan's opinion does not discuss the witness's whereabouts.

Prosecutors expect the witness to testify that Abu Ghaith
knowingly took part in al Qaeda's conspiracy to kill Americans;
knew of plans to bomb airplanes in the United States after the
Sept. 11, 2001 attacks; and visited the al Qaeda camp Matar,
which provided training in "urban warfare."

The defense claimed that testimony from the witness would
also be unreliable because he had never met Abu Ghaith and was
not involved in activity underlying the government's case.

But Kaplan said the testimony could advance the government
argument that Abu Ghaith was making videotaped threats to bomb
airplanes at the same time such a plot was being hatched.

He also said the witness' presence at Matar while Abu Ghaith
gave speeches there "potentially is probative" of the
defendant's knowing involvement in the alleged conspiracy.

Badat has testified by video in other terrorism trials in
the United States, following his 2005 guilty plea in Britain and
subsequent imprisonment for conspiring with Reid.

Terrorism charges are pending against Badat in the United
States, and prosecutors have been told Badat would be arrested
if he came to the country to testify in person.

Stanley Cohen, a lawyer for Abu Ghaith, said he is pleased
with the decision to allow Hamdan to testify. A spokeswoman for
U.S. Attorney Preet Bharara in Manhattan declined to comment.

Reid is serving life in prison after passengers overpowered
him as he tried to ignite explosives in his shoe on an American
Airlines plane bound for Miami on Dec. 22, 2001. The failed
attack changed security at airports nationwide.

Jury selection in Abu Ghaith's trial is set for Feb. 24.

The case is U.S. v. Abu Ghayth, U.S. District Court,
Southern District of New York, No. 98-cr-01023.